- BVerfGE 85, 1 1 BvR 1555/88 Critical shareholder -decision (Bayer Pharmaceutical Case)
- 09 October 1991
- Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.
- © Nomos Verlagsgesellschaft
1.__The Basic Law's Art. 5(1), first sentence is misperceived when formulations in which the evaluation of factual events is expressed are viewed as factual assertions.
2.__It violates the basic right of freedom of opinion (the Basic Law's Art. 5(1), first sentence) when one who makes a disparaging factual assertion about another person, and that assertion does not stem from his own realm of experience, is not allowed to fulfill his burden of corroboration by referring to unrefuted press reports.
Order of the First Panel of _9 October 1991 1 BvR 1555/88
in the proceedings concerning the Constitutional Complaint of . . . against . . .
The 20 November 1987 judgment of the Land Court Cologne - 28 o 279/87 - and the 20 September 1988 judgment of the Superior Land Court Cologne - 15 U 83/88 - infringe the Complainant's basic rights under the Basic Law's Art. 5(1), first sentence. The Superior Land Court's judgment is vacated in full, and the Land Court's judgment is vacated to the extent that it is disadvantageous to the Complainants. The matter is remanded to the Land Court.
The Land North Rhine-Westphalia shall refund to the Complainants their necessary expenses.
EXTRACT FROM GROUNDS:
The Constitutional Complaint is directed at civil court decisions that ordered the Complainants to stop making statements in a flyer and to retract the statements.
1. Complainant One is an association possessing legal personality. According to §2(2) of its by-laws, its purposes include
- the collection and dissemination of information about damages to humans and the environment as well as about the endangerment of jobs caused or supposedly caused by the BAYER-concern or one of its subsidiaries or holding companies;
- the organization of a dialogue between the party who caused the harm and the affected and interested persons to address the avoidance and remedying of these damages.
The association is the publisher of the flyer at issue in the underlying proceedings. Complainant Two is a member of Complainant One's board of directors.
The flyer, published in February 1987, was termed an "appeal" and contained the demand, "Support the critical BAYER-shareholders". The "critical Bayer-shareholders" meant a task force within Complainant One. Under the demand can be seen a picture of the Bayer plant in Leverkusen. Following it is one line of text, which continues onto the back of the flyer. Initially in the text the Bayer concern's economic importance is portrayed. Thereafter it is stated that, while Bayer asserts that its activity serves environmental protection, and that Bayer recognized an obligation to human health, the opposite is in fact true. This pronouncement is then illustrated in seven short paragraphs, each with its own headline. The seventh of these paragraphs reads as follows:
Dangers for Democracy
In its limitless quest for profits and gains, BAYER infringes democratic principles, human rights, and political fairness. Unpopular critics are spied upon and pressured; right-wing and compliant politicians are supported and financed.
It is followed by statements about those responsible for the activities disapproved of and also by information about both the "critical Bayer-shareholders" and Complainant One as well as about the Bayer concern's reaction to their activity. Next comes the appeal for support itself, plus a list of organizations that had signed it. Finally, listed in a separable portion are various possibilities for offering support, which the flyer's recipient is supposed to check off in case it wants to respond favorably to the appeal. The flyer was distributed at environmental protection events, demonstrations, and on the occasion of the Bayer Company's 1987 annual board meeting.
The Bayer Company, Plaintiff in the underlying proceedings, sought to enjoin the Complainant from disseminating the entire passage that appears under the heading "Dangers for Democracy". In addition, Bayer demanded that, with regard to the second sentence, the assertion be retracted as untrue. In the underlying proceedings, the Complainant provided further explanation of the first sentence of the text in controversy and, concerning the first clause of the second sentence, named a total of 16 incidents in order to substantiate its pronouncement that unpopular critics had been spied upon and pressured. That right-wing and compliant politicians in Germany were being supported, the Complainant added, was evident from articles published in Spiegel and Stern magazines and in the Augsburger Allgemeine newspaper; according to these, the Plaintiff supposedly was entangled in the Party-Donations Affair. Moreover, Mr. Verheugen, a member of the Bundestag, had publicly reported that donations were made to the governing party of South Africa. The Plaintiff in part denied the assertions and in part commented on them individually.
2.a) The Land Court found for the Plaintiff regarding the passage's second sentence (spying on and pressuring unpopular critics, supporting and financing compliant politicians), and dismissed the complaint as unfounded in other respects (dangers for democracy; infringement of democratic principles, human rights, and political fairness). In the grounds for its decision the Land Court in essence reasoned as follows:
The first statement, which forced itself upon the unbiased reader, did not in view of its meaning constitute a factual assertion. The evaluative character predominated, since the factual content in the Complainants' blanket assertions had so little substance that it took a back seat to the evaluation. It had not been established that this was an insulting criticism, so the statement was covered by the basic right of free expression of opinion under the Basic Law's Art. 5(1).
On the other hand, the Plaintiff could demand injunction and retraction of the second statement in accordance with the Civil Code's §§ 1004 and 823(1)-(2) in connection with the Criminal Code's §§ 185 et seq., as well as in accordance with the Civil Code's § 824. One had to proceed on the basis that the individual factual assertions contained in this statement were not merely unproven, but indeed were untrue. The second sentence did not involve an expression of opinion protected by the Basic Law's Art. 5(1), but rather a factual assertion. The evaluations contained therein collectively summarized factual assertions upon which evidence could be taken. In this case the hearing of evidence could be dispensed with, however, because the Complainants failed to satisfy their heightened duty of corroboration. Regardless of who bore the burden of proof, a duty of substantiation applied to all who made assertions that, like those in controversy here, constituted honour-impairing statements. Since the Complainant had not fulfilled this duty, not only were its offers of proof insignificant, but one also had to proceed on the basis of the assertions' untruth. Yet untrue assertions did not partake of Art. 5(1)'s protection.
The incidents set forth by the Complainant were not capable of supporting the allegations of "spying" and "pressuring". According to the Duden Dictionary (2nd ed. 1985), "to spy" meant "to secretly observe and eavesdrop via an informer". The words "observe" and "watch" were related in meaning to "spy" yet not identical, since they lacked the essential characteristic of spying, namely secrecy.
The Land Court considered one of the essential attributes of pressuring to be an ends-means relationship such as was characteristic of duress, and the court repeatedly understood the term "pressuring" as duress in the criminal-law sense. Proceeding on this basis, it concluded that none of the incidents set forth by the Complainant could substantiate the assertions of spying and pressuring.
The assertion that the Plaintiff had supported the apartheid-regime by making donations to the governing party of South Africa had not been sufficiently substantiated. The Complainant would have had to show thoroughly and specifically when, to whom, and under what circumstances donations had flown to the South African governing party. Pointing out that the member of the Bundestag, Mr. Verheugen, had uncovered this in November 1986 was not sufficient. The Complainants also had not sufficiently substantiated the Plaintiff's entanglement in the Party-Donations Affair. Reference to articles in Spiegel and Stern magazines and in the Augsburger Allgemeine newspaper did not suffice. When the press made factual assertions that were demonstrably untrue or that had to be viewed as untrue due to lack of substantiation, the Complainant's adoption and dissemination of these facts as true was not justified.
b) The Superior Land Court revised the Land Court's judgment and enjoined repetition of the statement's first sentence as well. In the judgment's operative portion, the Superior Land Court amended the statement as against both the flyer's text and the text set forth in the Plaintiff's request for relief, making it read as follows:
The Plaintiff endangers democracy, because in its limitless quest for profits and gains it infringes democratic principles, human rights, and political fairness by spying on and pressuring unpopular critics and by supporting and financing right-wing and compliant politicians.
In the grounds of its decision the Superior Land Court in essence reasoned as follows:
The Plaintiff had proven its right to an injunction of the entire passage in accordance with the Civil Code's §§ 1004 and 823(1)-(2) in connection with the Criminal Code's §186. The Complainants' declarations were not mere expressions of opinion (value judgments), which the Basic Law's Art. 5(1) covered. They had to be viewed, although not as pure factual assertions, at least as value judgments with a factual core, the truth of which could be proven; as such, they had to be seen as untrue, and thus did not come under Art. 5(1)'s protection. In contrast to the Land Court's view, the textual passage could not be divided into two separate parts, to be adjudged for legal purposes independently. Rather, the statement was a unitary whole that had to be understood as the court had transcribed it in the judgment's operative portion. This was confirmed by the appeal for support's overall concept; its other segments of text essentially followed the same schema, since within each segment the various individual statements were attuned to each other.
Admittedly, the declaration that the Plaintiff infringed democratic principles, human rights, and political fairness was a conclusion drawn from individual circumstances, and hence it had to be viewed as an appraisal that summarized these circumstances. But it did not follow from this alone that an expression of opinion was involved here, since this issue had to be determined not merely from the statement's wording and exterior form, but also from the way it would be understood in its overall context by the persons addressed. These persons, however, had to understand the declarations in their entirety, as a summary portrayal of the Plaintiff's objectively provable machinations, which the appeal for support then detailed. The gravity of the accusation was increased by the generalizing formulation thereof; this showed that more than simply a few individual encroachments by the Plaintiff's colleagues were being discussed. This formulation, therefore, essentially became a pronouncement that the named practices were characteristic of the Plaintiff's corporate leadership.
The Complainants' assertions were subject to a heightened burden of corroboration. The Complainants had failed to carry this burden, making it necessary to proceed on the basis of the assertion's untruth. Neither the substantiating facts brought before the Land Court nor a further incident set forth in the appeal on points of fact and law supported the accusation of spying and pressuring. Concerning the supporting and financing of right-wing and compliant politicians, a suspicion voiced in 1984 could no longer substantiate this assertion in 1987.
In their Constitutional Complaint the Complainants allege an infringement of their basic rights and equivalent rights under the Basic Law's Art. 5(1), first and second sentences, Art. 3(1), and Art. 103(1). They have argued in essence as follows:
The contested decisions were based on a fundamental misperception of the basic rights of freedom of expression and freedom of the press. In contrast to the Superior Land Court's view, the first statement constituted not a factual assertion, but an evaluation, from which no provable set of facts could be gleaned. The terms "quest", "profits", and "infringement of democratic principles" were typical evaluations which likewise did not constitute a summary of provable substantiating factual assertions. The statement itself contained no facts at all. Its intellectual content so lacked substance as to yield to the evaluative character. A reader of the declaration could not form the judgment "true or false", but at best merely "right or wrong". Complainant One worked hard for environmental protection and secure jobs at the Bayer Company, and had wanted to convince the reader of the accuracy of its views. It therefore was especially objectionable that the Superior Land Court had deemed this intent to convince, which the Basic Law's Art. 5(1) protected, as suggesting something other than an expression of opinion. Protecting the environment and securing jobs were questions of essential concern to the public.
The second statement likewise constituted an expression of opinion and not a factual assertion. In the terms "unpopular critics", "spied upon", "pressured", and "right-wing and compliant politicians", it contained evaluative pronouncements that were not provable. The statement involved a reference to evaluative insights, and not a summary of factual assertions, for which there simply was not enough room in the flyer. Nor did the statement contained in the flyer become a factual assertion when, in the course of court proceeedings, the Complainant supplied grounds to support its evaluations. Admittedly, the statement also had contained factual elements; but these were not encompassed by the protective scope of the Basic Law's Art. 5(1). The courts had failed to grasp this.
It violated Art. 5(1), first sentence when the courts - starting from a factual core - required the Complainant to fulfill the full burdens of proof and corroboration for their pronouncements. This had a crippling effect on readiness to disseminate facts. The Superior Land Court neglected to balance the Complainant's freedom of expression of opinion against the Plaintiff's interests that merited legal protection; this, however, was mandatory under the rubric of safeguarding legitimate interests (the Criminal Code's §193) and the right of reply.
All in all, the Superior Land Court violated the Basic Law's Art. 5(1), first sentence by reinterpreting - in opposition to the Plaintiff's request for relief in the underlying proceedings - the Complainant's statement and enjoining a statement entirely different from the one actually made. The alterations in both sentences and the insertion of the words "because" and "by" changed the meaning. The court created a single whole out of three independent pronouncements. Certainly the pronouncements contained in the statement's last portion sufficiently provided a foundation for the preceding sentence and its legitimacy.
By revising, in the judgment's operative portion the statement set forth in the Plaintiff's request for relief, without giving the Complainant opportunity to state its views, the Superior Land Court violated the Basic Law's Art. 103(1). Moreover, it failed to take note of the Complainants' submissions. It stated that the Complainant merely supported the assertion that right-wing and compliant politicians were financed and supported by referring to a suspicion, which existed at least in 1984, of entanglement in the Party-Donations Affair. In fact, however, among the grounds that the Complainant gave for their appeal on points of law and fact, they also had referred to support of the governing party of South Africa. Had the Superior Land Court taken note of all the Complainant's submissions, it might have reached a different result.
Further, the court violated the prohibition against arbitrary action derived from the Basic Law's Art. 3(1) in that it placed exaggerated demands on the Complainant's duty of substantiation. Given normal duties of cooperation and the general rules regarding burden of proof, the court's application of the nonconstitutional law was incomprehensible.
According to the expert legal opinion that the Complainants submitted in support of their position, the contested decisions above all violated the basic right of freedom of the press under Art. 5(1), second sentence. Taking account of the constitutionally mandated broad meaning for the term "press", the appeal for support had to be considered a work of the press. Admittedly, whoever invoked freedom of the press was subject to a certain duty of truth. This applied, however, only with regard to news and to factual assertions made in the context of general press reporting, and not with regard to evaluative views stated in commentaries or lead articles. The textual passage of the appeal for support to which Plaintiffs took objection was meant as a value judgment, and was recognizable as such. But even if one wished to assume that both sentences contained a provable factual core, to this extent the Complainants had fulfilled their duty of care.
The Complainants had not asserted, nor had they intended to assert, that the practices mentioned were characteristic of the Plaintiff's corporate leadership. The Superior Land Court's belief to the contrary had served both to place upon the Complainant a heightened burden of corroboration and to render superfluous an examination of evidence regarding the individual instances.
In addition to the Constitutional Complaint's argumentation, the expert report reaches the conclusion that the basic right of freedom of association under the Basic Law's Art. 9(1) has been infringed. The appeal for support, the report states, serves the attraction of members and sympathizers.
The Plaintiff in the underlying proceedings contends that the Constitutional Complaint is impermissible due to a failure to comply with the one-month deadline of the Federal Constitutional Court Act's §93(1).
In support of its position, the Plaintiff likewise has submitted an expert legal opinion. This opinion concluded that the Superior Land Court's judgment could not be the object of a broad constitutional review, extended to encompass individual mistakes of interpretation, because only the expression of opinion's form was involved, rather than the core of the Complainants' freedom of opinion, namely the thoughts contained therein. The judgment did not stop the Complainants from continuing to disseminate negative value judgments about the Plaintiff, so long as they refrained from uttering criminal insults. The prohibition imposed by the judgment was instead limited to the statement as a whole that the court discerned in the controversial textual passage. But predominant in this statement was the factual content. Whoever issued honour-impairing factual assertions about another person was subject to a special duty of care. Only when this duty was met did a presumption in favor of free speech apply. The Complainant had neglected to take the requisite care. Hence its statement had to be treated as an incorrect factual assertion and thus was not protected by the basic right. The Superior Land Court, therefore, had not needed to undertake a balancing of the legal interests. That it had changed the grammatical form of the statement as a whole was unobjectionable. The result had been a considerate treatment of the Complainants' freedom of opinion, since they had not been forced to refrain from disseminating the textual passage's typical value judgments.
The Constitutional Complaint is permissible. The Federal Constitutional Court cannot rule on the allegation of infringement of the Basic Law's Art. 9(1), however, since it was raised for the first time after expiration of the allotted filing time.
The Constitutional Complaint is well-founded. The contested judgments infringe the Complainants' basic rights under the Basic Law's Art. 5(1), first sentence.
1. The constitutional standard applicable is the basic right of freedom of opinion under the Basic Law's Art. 5(1), first sentence.
It is true that the appeal which contains the statements in controversy constitutes printed matter that is both suitable for and intended for dissemination, so that, under the generally accepted view, it fulfills the elements of the term "press" within the meaning of the Basic Law's Art. 5(1), second sentence. But it does not follow from this alone that this basic right also protects an individual expression of opinion as soon as it is contained in printed matter. Freedom of the press is not a special basic right for opinions disseminated via print technology, nor is it a reinforcing repetition of freedom of opinion, restated to fit the press. Were it intended only to make certain that the basic right also protects a printed opinion, there would have been no need for freedom of the press to have its own guarantee. It would have sufficed instead to keep the "print" medium, which already was mentioned alongside word, writing, and picture in Art. 143(1), first sentence of the Paulskirche Constitution of 1848 and in Art. 118(1) of the Weimar Constitution. It also is apparent from the Parliamentary Council's debates that omitting the word "print" in the context of freedom of opinion, and instead creating for freedom of the press its own guarantee, was not meant to exclude printed expressions of opinion from freedom of opinion's protective scope and situate them instead within that of freedom of the press. Rather, the word "print" was deleted from the draft because, in the Parliamentary Council's opinion, it already was contained in the factual element of "writing" (vgl. JöR N.F. 1, p.80 ff.).
While an expression of opinion contained in the press already is protected by the Basic Law's Art. 5(1), first sentence, the special guarantee of press freedom involves the press's significance for free individual and public formation of opinion, which which Art. 5(1) seeks to guarantee (cf. BVerfGE 20, 162 [175f.]). This significance reaches above and beyond discrete expressions of opinion. Hence the protection offered by Art. 5(1), second sentence relates above all to the requirements that must be satisfied in order for the press to be able to fulfill its task in the communications process. This is what the Federal Constitutional Court meant when it spoke of a broad meaning for the term "press" and determined that the basic right protects the press' institutional autonomy all the way from the acquisition of information to the dissemination of news and opinion (cf. BVerfGE 10, 118 ). When the Court stated there that securing the press as an institution included the subjective public right of persons working in the press to express their opinions, both in the form they find most suitable and precisely as freely and without hindrance as every other citizen, it was not referring to individual statements that appear in the press. Rather, on the basis of this formulation, the Court was reviewing the constitutionality of a Land statute that granted the government the right, under certain circumstances, to prohibit editors from practicing their vocation (cf. BVerfGE, id.).
Thus the protective scope of freedom of the press is impinged upon when the following are involved: a product of the press; the exercise by persons who work in the press of their function; the press's institutional, organizational prerequisites and framework conditions; and finally the very institution of a free press itself. When, on the other hand, the issue is whether or not a particular expression of opinion was lawful, especially whether a third person must tolerate an expression of opinion that disadvantages him, then the Basic Law's Art. 5(1), first sentence applies regardless of the medium of dissemination. In accordance with this, the Federal Constitutional Court already has used the basic right of freedom of opinion as the standard by which to judge the permissibility of expressions of opinion contained in books or flyers, i.e. in publications that are generally believed to fall under the term "press" (cf. BVerfGE 43, 130 ; 71, 162 [179ff.]). Whether in addition the basic right of freedom of the press can provide the standard used upon review need not be decided here.
2. The Constitutional Complaint is directed against civil court decisions rendered upon requests made under private law for an injunction and a retraction. It is the ordinary courts' task to interpret and apply the applicable legal rules. They must take account in their decisions, however, of the basic rights' influence on civil and criminal law provisions (cf. BVerfGE 7, 198 ; consistent holdings). The Federal Constitutional Court's obligation is merely to ensure that the ordinary courts heed the norms and standards supplied by the basic rights (cf. BVerfGE 42, 143 [147f.]). A violation of constitutional law that requires this Court's correction exists only when a court decision reveals mistakes of interpretation which are based on a fundamentally incorrect view of a basic right's significance and reach, especially of the extent of its protective scope (cf. BVerfGE 18, 85 [92 ff.]).
When infringements of freedom of opinion are involved, however, this can be the case, simply when a statement is inaccurately comprehended or valued. The basic right's influence is misperceived when courts base an adverse judgment on an incorrect version of a statement; or when they give the statement a meaning that, in light of the wording found by the court, it objectively does not have; or when, from among several objectively possible interpretations, they choose the one that leads to an adverse judgment, without excluding the others on the basis of explicit and convincing grounds (cf. BVerfGE 43, 130 [136f.]; 82, 43 [52f.]; 82, 272 [280f.]). Further, freedom of opinion's significance and reach are misperceived when the courts inaccurately categorize a statement as a factual assertion, as a formal vilification, or as an insulting criticism, so that it cannot partake of the basic right's protection to the same extent as statements that must be viewed as value judgments, lacking any vilifying or insulting character (cf. BVerfGE 60, 234 ; 61, 1 ; 82, 43 ; 82, 272 ). Factual findings and applications of law that have such content can from the outset block access to the realm which the basic right protects. Therefore, they must be fully reviewable by this Court, lest protection of freedom of opinion be unacceptably reduced (cf. BVerfGE 43, 130 [136f.]; 54, 208 ; 82, 272 ).
The prerequisites for a complete review of the factual understanding and legal evaluation of the critical shareholder's appeal are satisfied here. The civil courts based their adverse judgments on a particular understanding of the controversial textual passage. They then adjudged the passage to be fully or in part an untrue factual assertion, rendering it unprotected by freedom of opinion. The judgments, therefore, do not merely enjoin the Complainants' statement in the form they chose for it, as the Plaintiff in the underlying proceedings argues. Rather, it is the content, disseminated by the Complainant via the controversial textual passages, which forms the object of both the duty to cease and the duty to retract.
3. The Basic Law's Art. 5(1), first sentence guarantees everyone the right to freely express and disseminate his opinion. Opinions, in contrast to factual assertions, are characterized by an element of stating a position, expressing a view, or opining (cf. BVerfGE 61, 1 ). They enjoy the basic right's protection regardless of whether the statement is valuable or worthless, right or wrong, well-founded or unfounded, emotional or rational (cf. BVerfGE 33, 1 ; 61, 1 ). Even sharply worded, exaggerated statements as a rule fall within the protective scope of Art. 5(1), first sentence. To this extent, at issue is only whether and how Art. 5(2) supplies limitations.
In contrast, the communication of a fact is not an expression of opinion, because it lacks the features that characterize such an expression. Factual assertions, therefore, do not from the outset fall outside of the protective scope of Art. 5(1), first sentence. Rather, they are protected by the basic right of freedom of opinion because, and to the extent that, they are a prerequisite for the formation of opinions, which Art. 5(1) guarantees (cf. BVerfGE 54, 208 ; 61, 1 ). Hence protection of freedom of opinion ends only where the factual assertions can contribute nothing to this constitutional prerequisite of formation of opinion. Seen from this perspective, incorrect information is not an interest that merits protection. The Federal Constitutional Court starts with the supposition that a factual assertion which the asserting party knows is untrue, or which has been proven untrue, is not encompassed by the protection afforded by Art. 5(1), first sentence (cf. BVerfGE 61, 1 ). However, the demands placed on this duty of truth may not be ratcheted so high that, as a result, the function of freedom of opinion suffers (cf. BVerfGE 54, 208 ; 61, 1 ).
The distinction between value judgments and factual assertions can be difficult in a given case. This is true primarily because frequently both forms of expression are interconnected and only together form the statement's meaning. In such cases, the term "opinion" must be broadly understood in the interest of an effective basic right protection. Hence, to the extent that a statement in which facts and opinions commingle is characterized by elements of stating a position, expressing a view, or opining, the basic right will protect it as an opinion. This is particularly true where a separation of the statement's intellectual content into evaluation and fact would eliminate or falsify its meaning. If in such a case the factual element were seen as decisive, then the basic right's protection of freedom of opinion could be substantially diminished (cf. BVerfGE 61, 1 [8f.]).
The basic right of freedom of opinion is not guaranteed, however, without limits. Under the Basic Law's Art. 5(2), its limits are found in the provisions of the general statutes, in the statutory rules for the protection of youths, and in the right of personal honour. For their part, however, these provisions limiting the basic right must be interpreted in light of the limited basic right, thus allowing its value-setting importance for nonconstitutional law asserts itself at the stage of applying the law (cf. BVerfGE 7, 198 ; consistent holdings). This routinely leads to a case-specific balancing, undertaken within the framework provided by those nonconstitutional statutory elements that offer room for judicial interpretation; the significance of freedom of opinion is balanced against the status of the legal interest that the expression of opinion harms and that the nonconstitutional law seeks to protect.
Due to its case-specific nature, the result of the balancing cannot be predetermined in general and abstract terms. The Federal Constitutional Court starts with the supposition, however, that sharply worded and overstated formulations do not by themselves constitute a damaging statement. Rather, where contributions to the intellectual struggle of opinions are involved, and they involve an issue of essential importance to the public, there is a presumption in favor of the permissibility of free speech (cf. BVerfGE 7, 198 ). This is a consequence of the fundamental importance of freedom of opinion for human beings and for the democratic order (cf. BVerfGE, id., p. 208). Only when the belittlement of the person, rather than the conflict over the issues, predominates must a statement routinely yield to the affected person's right of personality (cf. BVerfGE 82, 272 [283f.]).
For factual assertions, on the other hand, the premise that the presumption lies in favor of free speech has only limited application. To the extent that factual assertions from the outset remain outside the protection afforded by Art. 5(1), first sentence, they can be limited on behalf of other legal interests more easily than can expressions of opinion (cf. BVerfGE 61, 1 ). This also is true when evaluative and factual elements commingle in such a way that the entire statement must be viewed as a value judgment. The correctness of the factual portions can then play a role in the context of the balancing. If the expression of opinion contains factual assertions which the asserting party knows are untrue, or which have been proven untrue, then the basic right of freedom of opinion routinely will yield to the legal interest protected by the statute that limits the basic right. Here, too, of course, one must recall that demands may not be placed on the duty of truth which diminish the readiness to use the basic right, thereby exerting a narrowing effect on freedom of opinion (cf. BVerfGE 54, 208 [219f.]; 61, 1  ).
4. The contested decisions did not sufficiently heed these principles. To the extent that they viewed the Complainants' statements as incorrect factual assertions and hence withheld the protection afforded freedom of opinion, they cannot withstand review under the standard provided by the Basic Law's Art. 5(1), first sentence.
a) We need not answer whether the Superior Land Court violated Art. 5(1), first sentence when it changed the wording of the Complainants' statement and concluded, on the basis of this revised formulation, that the whole of it - and not merely its final sentence, as the Land Court believed - had to be viewed as a factual assertion. This is so because, even if one were to base the legal evaluation of the text on the Superior Land Court's version of it, it still would not qualify as a factual assertion.
The Complainants' statement names in its headline ("Dangers for Democracy") the topic of the controversial textual passage. It then illustrates this topic in two linguistically unconnected sentences, only the second of which contains factual elements. The Land Court viewed these sentences as two independent rationales for the accusation contained in the headline. As a result, it investigated their factual and evaluative meaning separately. Even if one were not to do this, however, but instead were to follow the Superior Land Court and view the textual passage as a unified sentence - viewing the headline as an assertion, the first sentence as a rationale, and the second as a substantiation - its categorization as a factual assertion still could rest solely on the factual content of the last sentence, which is then viewed as determinative for the entire textual passage.
b) The Basic Law's Art. 5(1), first sentence is misperceived when the entire statement or its last sentence is viewed as a factual assertion. There can be no doubt that the statement's first sentence involves a value judgment, as the Land Court rightly concluded from the complete absence of factual elements. But this sentence also does not become a factual assertion when, like the Superior Land Court, one merges it with the second sentence and, on the basis of the latter's factual content, views the entirety as a factual assertion. For in the second sentence, too, the evaluative character predominates, despite the presence of factual elements.
aa) Regarding the first part of the statement's final sentence, the civil courts did not take as their starting point the sentence's subjects (unpopular critics, compliant politicians), but its predicates (spied upon, pressured, supported, financed). These predicates were viewed as factual assertions that lent the entire sentence a predominately factual character. The contested decisions, citing the Duden Dictionary, understood the verb phrase "to spy upon" as a synonym for "secretive observation", as opposed to mere observation and surveillance, without further qualification. Thus "to spy upon", as used in the statement objected to, gains the function of an authoritative characterization of a distinct event in reality. Clearly the Land Court and, following it, the Superior Land Court both understood the word "pressure" in the sense of duress as that term is used in the Criminal Code's §240. To this extent, the statement objected to thus also becomes a characterization of a set of legal elements, which then can be examined to see whether the Plaintiff in reality fulfilled them.
This understanding of the text fails to do justice to the Complainants' statement. Of course each of its portions contains factual elements: In the term "to spy upon" lies the factual assertion that observations have occurred; in the verb "to pressure" lies the assertion that influence has been exerted. But the courts failed to take into consideration that, through the use of such formulations, the Complainant expressed a view of, and evaluated, these events. When the factual event of observing other persons' behaviour in order to collect information is characterized as "spying upon", this expresses above all the speaker's negative value judgment of the method and manner of observation. The term gives expression to a condemnation of the occurrence (cf. Grimm's Dictionary (1984), vol. 16, "spy" (Spitzel): pejorative, derisive).
Virtually the same can be said for "pressuring" if this is understood in the sense of duress. It is widely acknowledged that even legal terms may not, without more, be understood in their specialized, technical sense when they are used in the public struggle of opinions (cf. BGH, NJW 1982, p. 2246 ). Rather, one must glean from the circumstances whether a technical or an everyday use of the term is at issue. Particularly problematic is giving a commonplace expression like "pressuring" the meaning of a legal term, especially when it is not used in a legal context. Instead, the presumption here lies in favor of the term's familiar meaning in everyday speech. But in everyday terms pressuring does not occur only when there is an illegal threat. Rather, it suffices simply that one employs some means of getting another person to do something either that he would not do of his own accord or that he would not do did he not have to fear the threatened disadvantage. The formulation "pressuring", however, just like "spying on", expresses condemnation of the event. An observer will not characterize as "pressuring" exertions of influence that he views as legitimate or acceptable.
bb) The evaluative element also predominates in the second part of the statement's last sentence. It is true that the Complainants' evaluative appraisal does not find expression in the predicate's choice of words. Both "to support" and "to finance" are neutral characterizations of the event addressed; from them one can recognize neither a positive or negative stance taken by the speaker. Nor is the event as such overlaid with a negative value judgment. Yet the evaluative element results from the placement in context with the sentence's subject and with the entire textual passage's headline. Right-wing and compliant politicians are named as receivers of the support and financing. "Right-wing and compliant politicians" stand in recognisable contrast to "unpopular critics". The politicians who here must be viewed as compliant are those who orient their political decisions toward the Plaintiff's interests. Therein lies an evaluation that extends to the support and financing, which in and of themselves are neutral. When these are taken in context with the headline, then, it becomes clear that the Complainant sees dangers for democracy in, and therefore condemns, the Plaintiff's support and financing of these politicians.
5. Because the controversial textual passage involves an expression of opinion that the Basic Law's Art. 5(1), first sentence protects, the civil courts were not allowed to enjoin the defendant and to order a retraction without undertaking a balancing. They had to balance, in the process of interpreting and applying the Civil Code's §§ 823 and 1004 in connection with §824 and the Criminal Code's §185 et seq., the Plaintiff's legal interests which these provisions protect against Complainants' basic right of freedom of opinon. The civil courts now must remedy this and engage in this balancing. As explained above, the correctness or groundlessness of the factual elements contained in the expression of opinion can play a role. As part of such an expression, incorrect utterances cannot from the outset be stripped of the basic right's protection. Routinely, however, they cannot claim any greater weight than those rights of third persons with which they collide.
It is constitutionally unobjectionable for the civil courts to start with the supposition that one who asserts honour-impairing facts about another person bears an extended burden of corroboration. It is likewise unobjectionable for them to view as untrue any factual assertion that does not satisfy this burden. In performing the balancing, however, one may not place on the duty of corroboration demands that could have deterrent effects on the general use of the basic right of freedom of opinion. To this extent one must always keep in mind the consequences that the interpretation of nonconstitutional law has for freedom of opinion. In this context, and from the perspective of basic rights, the contested decisions, to the extent that they specify the burden of corroboration and draw conclusions regarding the factual assertions' correctness, prompt the following comments.
a) Because in choosing the terms "to spy upon" and "to pressure" the Complainant gave an evaluation, as opposed to a description, of the Plaintiff's behavior, the civil courts cannot make their decision depend on whether there has been a sufficient showing that the Plaintiff secretly observed and illegally threatened critics of its enterprise. The courts instead may review only whether the factual assertions contained in the value judgments "to spy upon" and "to pressure" - namely that the Plaintiff had critics of its enterprise observed, and that it attempted to exert influence on the critics' behavior - are accurate or were put forth despite lacking any foundation.
b) A further error concerns the statement that right-wing and compliant politicians were supported and financed. The civil courts cannot conclude that the factual assertions contained in these statements are untrue simply because it finds that reference to press reports and to a member of parliament's public statements are incapable of satisfying the extended burden of corroboration for honour-impairing assertions. The demands placed upon this burden are ratcheted too high when one who makes a belittling assertion about another person that does not stem from his own realm of experience, and which exceeds his possibilities of verification, is not allowed to substantiate his assertion by reference to uncontroverted press reports.
In general it is true that an unproven factual assertion which has a belittling character does not become permissible just because it was made by others and was not controverted. The injured person is free to take legal action against certain tortfeasors and to spare others. The motives for his choice to do so are irrelevant. Yet these principles cannot be transferred without further investigation to the type of case in which the disadvantageous assertion first appeared - uncontroverted - in the press or in another source generally available to the public. It is true that, under the civil courts' jurisprudence, the press is subject to a special duty of care when it disseminates disadvantageous facts. But a comparable standard of care can be required of an individual only to the extent that he makes factual assertions that he has gleaned from his own realm of experience and control. In contrast, when events of public interest are involved - particularly those which occur in the recondite realms of politics and business - it usually is impossible for the individual to produce even substantiating facts, let alone solid proof, via his own investigations. Instead, to this extent he is reliant upon reporting by the media.
If one nevertheless demanded from an individual a verifiable showing, the result would be that he no longer would be allowed to pick up belittling facts found in the press and use them to support his opinion. This would lead to a crippling of individual freedom of opinion. Moreover, it would narrow the societal communications process if an individual, having formed an opinion on the basis of press reports that fulfill their opinion-forming function, no longer could use such reports, because he cannot prove their truth. Neither result can be squared with the meaning of the Basic Law's Art. 5(1). If the civil-law provisions are interpreted in the light of this basic right, then an individual who in good faith takes press reports and draws from them generalising conclusions may neither be enjoined from doing so nor be ordered to retract his statements until the report is recognisably outdated or has itself been retracted. The same is true for the adoption of statements by a member of parliament.
Judges: Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.
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